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Class Actions, Post-CAFA

This month's Trial magazine has news from a March conference at the Benjamin Cardozo School of Law called "Justice and the Role of Class Actions." A quick summary--

Class actions are "evolving, not dying." If the Class Action Fairness Act (CAFA) was supposed to bring an end to class actions, it hasn't.

Class actions "should not be regarded as ideological battles" between the plaintiffs' lawyers and big business, since companies can use class actions to "shut down future litigation and control costs."

Cases about arbitration continue to work their way toward the Supreme Court, which so far hasn't accepted cert on the issue of whether companies can force consumers to "waive [their] right to participate in class actions."

Another way to frame the same issue: can states prohibit companies from banning class actions in their contracts, or does the Federal Arbitration Act preempt such state laws?

According to a representative of the defense bar, plaintiffs' lawyers have been creative in trying to "circumvent Rule 23 preponderance of the evidence requirements," for example, by submitting statistical proof "to try and get around the fact that each case is different."